TIXOLOGI GENERAL TERMS AND CONDITIONS
These TIXOLOGI GENERAL TERMS AND CONDITIONS (the “General Terms”) shall govern, and shall be expressly incorporated into the Tixologi Services Agreement, or such other agreement as Tixologi may enter into with its Clients from time to time (defined in these General Terms as the “Customer Contract”). The Customer Contract and these General Terms are referred to together herein as the “Agreement”. These General Terms shall be effective as of December 5, 2022. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Customer Contract.
- MERCHANT PROCESSOR:
- Tixologi as Merchant Processor. At any time during the Term when Tixologi is serving as the merchant processor, Tixologi will process and collect all payments from End Users and maintain a merchant account for this purpose. The following terms and conditions shall apply at all times during the Term when Tixologi is serving as the merchant processor:
- Payment Schedule. On each payment date (as defined in the Customer Contract) during the Term (or the following business day should any payment date fall on a weekend, national, state, local or regional holiday), Tixologi will remit to Client’s Direct Deposit Banking Account on file with Tixologi (A) the net ticket proceeds, calculated as gross ticket sales, less all Service Fees, less all Ticket Bounties (if applicable) for all Events that occurred or were completed in the period since the prior payment date or (B) solely if Tixologi has agreed to remit amounts to Client in advance of Events, the net ticket proceeds, calculated as gross ticket sales, less all Service Fees, less all Ticket Bounties (if applicable) received by Tixologi for ticket sales that occurred or were completed in the period since the prior payment date; provided, however, that the total aggregate amount of net ticket proceeds paid in advance by Tixologi to Client (i.e., amounts paid to Client that relate to Events that have not yet occurred) (the “Advanced Amounts”) shall not exceed any Cap (as defined in the Customer Contract, if applicable. Tixologi may use unremitted net ticket proceeds to cover any chargebacks, related charges, or fees due for any of Client’s Events in its sole discretion
- Financial Information; Credit Report Authorization; Verification of Information. No later than within ten (10) days of the Effective Date or the date on which or the date on which it is determined that Tixologi shall serve as merchant processor, as applicable, Client shall provide Tixologi with financial statements, balance sheets, and bank statements sufficient to enable Tixologi to evaluate Client’s creditworthiness. Client shall provide updated or then-current financial information to Tixologi throughout the Term when and as requested by Tixologi. Tixologi’s failure to request financial documents pursuant to this section shall not be deemed a waiver of such right, or relieve Client of such obligation. Client further authorizes Tixologi, directly or through third parties, to make any inquiries or take any actions Tixologi considers necessary to validate Client’s identity, evaluate Client’s creditworthiness, and verify information that Client has provided to Tixologi. Client authorizes Tixologi to obtain financial and credit information, such as pulling Client’s personal credit report, or the credit report(s) for Client’s directors, officers, and principals. By completing Client’s application to become a Tixologi customer, Client is providing Tixologi with written instructions and authorization in accordance with the Fair Credit Reporting Act to obtain such financial information or credit reports. In the event that Tixologi is unsuccessful, in its sole discretion, in receiving satisfactory information for it to verify Client’s identity or to determine that Client is creditworthy, Tixologi reserves the right to immediately: (A) terminate the Agreement with notice to Client; (B) cease providing Client with access to the Service until such time Tixologi is able to verify Client’s identity or determine that Client is creditworthy; (C) unilaterally amend the payment terms of the Agreement such that all payments will be made to Client only after an Event occurs in accordance with this Agreement; or (D) unilaterally change the merchant processor.
- Actions by Tixologi. If Tixologi believes, in its sole discretion, that there is an unacceptable degree of risk associated with Client, Client’s business, Client’s use of the Service, any Event, or any Client ticket sale transaction, or that Client has breached the terms of the Agreement, Tixologi may take various actions to avoid liability. The actions Tixologi may take include, but are not limited to, terminating, suspending or limiting Client’s ability to use the Service, removing Event(s) from the Service, refusing to process any ticket sale transaction, reversing a ticket sale transaction, holding Client’s payments, or unilaterally amending the payment terms of the Agreement such that all payments will be made to Client only after an Event occurs in accordance with this Section 1 and not in advance of any Event. If possible, Tixologi will provide Client with advance notice of Tixologi’s actions and resolution steps. However, advance notice will not be provided if there is an immediate need to take actions such as a security threat, potential fraud, or illegal activity.
- Reserves. A holdback Reserve amount equal to twenty percent (20%) of monies held by Tixologi for sixty (60) days after the completed Event date (or, if applicable, for such other number of days after the completed Event date as set forth in the Customer Contract) to cover any fees and expenses, and will be released to thereafter. Tixologi is not required to pay Client interest on the Reserve, and may release funds sooner to Client at Tixologi’s sole discretion. Any refunded orders or dispute payouts processed after the Reserve has been released to Client will be reconciled with Client either by recoupment of future payouts, invoice or holdback or offset against future payments. Tixologi may use the Reserve to cover any chargebacks, related charges, or fees due for any of Client’s Events as mutually agreed by client. Client agrees that it will remain liable for all obligations related to Client’s use of the Service, any Event, or any Client ticket sale transaction even after the release of any Reserve. In addition, Tixologi may require, in its sole discretion, Client to keep its Direct Deposit Banking Account available to Tixologi for any chargebacks, related charges, or fees due for any Event or any Client ticket sale transaction. For the avoidance of doubt, the Reserve will be calculated as of each applicable Payday, such that Tixologi will be permitted to withhold the specified Reserve percentage from each payment made to Client.
- Change to Merchant Processor. Tixologi may, in its sole discretion unilaterally change the merchant processor. If Tixologi believes, in its sole discretion, that there is an unacceptable degree of risk associated with use of the then current merchant processor, Client, Client’s business, Client’s use of the Service, any Event, or any Client ticket sale transaction, or that Client has breached the terms of the Agreement, Tixologi may, in addition to unilaterally changing the merchant processor, cease providing Client with access to the Service until such time that the change in merchant processor has occurred and other requirements of this Section, as applicable, are implemented.
- Client hereby grants to Tixologi, and Tixologi accepts from Client, the right during the Term to be the exclusive provider of blockchain-based ticketing software services and Client’s ticket seller and provider, as Client’s agent, of all tickets for each and every Event via any and all means and methods, including tickets sold at door, via call center, online, computer, IVR, outlets, television, clubs, auctions, presales, upsells, and through mobile, for all Events for all Groups. This exclusive right shall include all methods, means, and technologies for ticket sales, which may be existing now or at any time in the future. As expressly agreed in writing by the Parties, Client shall ensure that the entire sellable capacity for every Event shall be made available for distribution and sale through the Service. Further, for purposes of the Agreement, and this Section 2 in particular, Client shall include all current and future affiliate (sibling, parent, and subsidiary) companies of Client. It shall be considered a material breach of the Agreement for Client to engage in a separate venture or company to avoid the exclusivity of the Client-Tixologi relationship.
- During the Term of the Agreement, Client shall not, directly or indirectly: (i) use, sponsor, market, promote, authorize, or permit the use of any third-party (not including any affiliate of Tixologi) that promotes, engages in, or facilitates the sale, resale, or issuance of tickets; or (ii) otherwise offer for sale or sell tickets outside of the Service.
- If, as of the effective date of termination or expiration of the Agreement, Client owes any outstanding Service Fees, Ticket Bounties, or any other amounts due and payable to Tixologi under the Agreement, the rights granted to Tixologi and Client’s obligations under Sections 2(a) and 2(b) shall survive such termination or expiration until such time as all Service Fees, Ticket Bounties and all other amounts due and payable to Tixologi have been paid in full.
- Exceptions to exclusivity may be made in cases where Client is unable to sell tickets through Tixologi due to pre-existing venue contracts or other contractual limitations, but only with express written approval by Tixologi. In such cases Client will make best efforts to sell an allocation of tickets through Tixologi.
- Tixologi Responsibilities
During the Term, Tixologi will provide those services as detailed in the Customer Contract.
2. Client Responsibilities
Tixologi’s responsibilities are conditioned upon full compliance of Client with the responsibilities under the Agreement, which include, but are not limited to, the following:
- Single Price/Itemized Price: The option to set a single price for each ticket sale type that is inclusive of all fees for ticket sale (“All-In Price”) or the ability to break out fees for the End User. These fees include, but are not limited to, the Service Fees (as defined in the Customer Contract), all taxes (as detailed in Section 5(f)), and other fees from any third-parties (such as Ticket Bounties as defined in Section 5(b)). The All-In Price, less all such fees, may be referred to as the “Base Price”.
- Accuracy of Listings: Maintaining accurate and complete date, pricing, inventory, details, and venue information for all Events listed by Client on Tixologi.
- Modification of Listings: Timely updates in the Service and notification to Tixologi representatives of any change, rescheduling, and/or cancellation of Events. Tixologi reserves the right to request that Client modify any listings, and further reserves the right to remove any listing in the event such listings are not compliant with the Agreement, or in Tixologi’s reasonable discretion, the listing is offensive, fraudulent, or otherwise damaging to Tixologi’s reputation.
- Refund Policies: Maintaining refund policies that are compliant with applicable law and granting End Users refunds to the extent required by applicable law. Client shall use all commercially available means and courteous customer service to grant End Users full refunds: (a) in the event of an Event cancellation or over sale; and (b) to all requests made from End Users in the case of an Event rescheduling. In the event Tixologi learns that Client’s refund policies are not compliant with applicable law, Tixologi may, but is not obligated to, take immediate action without notice to Client to ensure compliance, at Customer’s sole cost and expense, including without limitation the right to pay refunds on Client’s behalf. Any such action taken by Tixologi shall not relieve Client of its obligations hereunder, and Client shall reimburse Tixologi for any amounts refunded by Tixologi on Client’s behalf and any and all other costs or expenses incurred by Tixologi in connection with any such action. For the avoidance of doubt: (1) Tixologi shall have no obligation to determine whether Client’s refund policies comply with applicable law; (2) Tixologi’s adherence to any of Client’s refund policies shall not in any way be considered an endorsement or approval by Tixologi of Client’s refund policies; and (3) Tixologi shall have no liability for any claims, losses or damages arising out of or in connection with Client’s refund policies and/or any refunds made by Tixologi on Client’s behalf.
- Clear and Fair Policies: Full disclosure of all rules that govern entrance and conduct at Events and Venues, including standards for wardrobe, security and search, rules related to End User recording and public display of Events, and behavior that might warrant ejection from the Venue.
- Tixologi Marketing: Permitting Tixologi to use a mutually agreed upon allocation of tickets for its marketing and promotional purposes, including as part of Tixologi’s loyalty programs. Such tickets will not be sold and Client will not receive any proceeds for or from such tickets. As a condition of such use, Tixologi agrees that it will not sell or otherwise receive direct consideration directly from the transfer of such ticket.
- Security: Using best efforts to maintain a secure network and operational environment for the administration of Tixologi, including ensuring that all employees using Tixologi have separate logins, do not share passwords, and regularly keep their computers or access devices free of viruses, Trojan horses, key logging, and other forms of malware.
- Best Practices: Understanding best practices of Tixologi product use as taught by Tixologi during the Tixologi training sessions, and using best efforts to implement these best practices. This includes hiring properly trained administrative staff who can independently access the Backstage site, as well as box office and will-call staff who can efficiently check in End Users using the Tixologi Door application and check photographic identification.
- Direct Deposit Banking Account: At any time during the Term when Tixologi is serving as the merchant processor, providing all information required for Tixologi to make a direct deposit transfer into a banking account selected by Client to receive all payments due from Tixologi (the “Direct Deposit Banking Account”), and immediately updating Tixologi if this information changes.
- Advertising: When appropriate, including the Tixologi logo in compliance with Tixologi’s brand guidelines, its website address (https://www.tixologi.com), and where appropriate, a hyperlink to the special Client URL at Tixologi (for example, https://client.tixologi.com), in all forms of advertising, mailings, and websites related to event promotion Client creates and/or controls.
- Virtual Events: If a Virtual Event (as defined in Section 7) is to be made available on the Tixologi Virtual Platform, organizing and operating such Virtual Event and producing and providing all Virtual Content to be Virtually Used (as defined in Section 7) during such Virtual Event.
- SERVICE LEVELS:
Tixologi will use commercially reasonable efforts to make the Service available twenty four (24) hours a day, seven (7) days a week, except for: (i) planned downtime (of which Tixologi shall give at least twenty four (24) hours’ notice via the Service and which Tixologi shall schedule to the extent reasonably practicable during low volume times); (ii) any unavailability caused by circumstances beyond Tixologi’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, pandemic, strikes, or other labor problems (other than those involving Tixologi employees), computer, telecommunications, Internet service provider, or hosting facility failures or delays involving hardware, software, or power systems not within Tixologi’s possession or reasonable control, and denial of service attacks; and (ii) any outage determined to be a result of Client’s breach of the Agreement or other acts or omissions of Client.
Client’s sole and exclusive remedy, and Tixologi’s sole and exclusive liability, for Tixologi’s breach of the Agreement will be the following credits. If Tixologi fails to meet the service level in this Section in any month for a specific Tixologi service, Tixologi shall credit to Client one-half percent (0.5%) of the Service Fees retained by Tixologi during such month for each cumulative hour, or portion thereof, of unavailability, up to a maximum of fifty percent (50%) the Service Fees paid by Client.
- COMMERCIAL TERMS:
During the term Tixologi and Client will abide by the following commercial terms:
- Service Fees and Payment Terms
Service Fees and Payment Terms shall be as described in the Customer Contract. Any conflict between the terms in Section 1 and/or Section 5 of these General Terms and the Customer Contract shall be resolved in favor of the terms of the Customer Contract.
- Affiliate Fees and Bounties
Tixologi may provide access to a network of affiliates (each an “Affiliate”) to help promote Client’s events if the Client so chooses. If Client elects to engage an Affiliate, it agrees to pay the full fees and commissions listed for each Affiliate (collectively the “Ticket Bounties”). Each Affiliate sets its own policies regarding Ticket Bounties and refunds. Client agrees to follow the policies and agreements of any Affiliate it chooses to engage.
- Refunds, Overages, and Late Payments
Client shall be responsible for processing refunds via the Tixologi platform. In the event that Client funds held by Tixologi are insufficient to cover the refunds directed by Client, Tixologi shall invoice Client for the balance owed to replenish the Reserve (as defined in the Customer Contract) and cover the refunds owed. In the event Client uses a third-party merchant processor other than Tixologi, Tixologi shall have no responsibility to process refunds, and as between Client and Tixologi, Client shall have all liability with respect to any refunds.
4. Bank Card Compliance
- Authorization: Client authorizes Tixologi to accept any credit or debit card or electronic payment method approved by Tixologi for purchase by End Users. Credit card processing fees shall be charged to Client consistent with the terms of the Customer Agreement.
- Compliance: Tixologi and Client shall comply at all times with the Card Companies’ rules, regulations, releases, interpretations, and other requirements (whether contractual or otherwise) imposed or adopted by the Card Companies. Neither Tixologi nor Client will extract or demand any special agreement, condition, fee, or security from an End User cardholder in connection with their mechanism of payment unless approved in advance by the applicable Card Company or federal or state law.
- End User Disputes: Tixologi and Client shall promptly notify one another and the applicable Card Company if either becomes aware of an End User’s purchase dispute.
Tixologi will assist Clients with chargebacks as follows:
- Any credit card chargebacks initiated by the purchasing customer including the processor’s chargeback fees, will be charged to Client. Tixologi is authorized to deduct these costs from Client’s outstanding balance, or automatically invoice Client via ACH or credit card for the costs if no balance exists. Tixologi will provide Client with a dashboard listing actual or potential chargebacks, which provides regular status updates related thereto.
- Dispute: Tixologi, at its expense, will be responsible for directly dealing with the respective merchant bank to resolve the chargeback in dispute and will use reasonable efforts to resolve all disputes in a manner favorable to Client.
If Client maintains, or is required to maintain, a third party merchant processor account, Tixologi shall have no responsibilities with respect to chargebacks, and as between Client and Tixologi, Client shall have all liability with respect to chargebacks.
Client agrees that the All-In Price will include the required taxes due at all levels, including but not limited to municipal, city, state, and federal levels of government as a result of, or in connection with, any Event (“Event Taxes”). Client acknowledges that it assumes all responsibility for payment of any Event Taxes to the appropriate authority in a timely fashion and Client will pay such amounts from the net proceeds. In the event that Tixologi is required to pay Event Taxes for any reason, Client shall promptly reimburse Tixologi for any and all such taxes paid by Tixologi, including penalties and interest assessed with respect thereto, and shall also promptly reimburse Tixologi for any and all expenses (including reasonable attorneys’ fees) or damages that result from the failure by Client to properly calculate and timely remit Event Taxes assessed on all amounts received by Client under the Agreement, to timely file all related returns or reports, or to timely reimburse Tixologi for any and all such taxes, interest, and penalties as provided above.
Should Tixologi and Client agree upon a sponsorship program, an Appendix containing program terms will be attached to the Customer Contract and incorporated therein.
- GRANT OF RIGHTS:
- By Tixologi:
- Access to Service. Subject to the terms and conditions contained in the Agreement, Tixologi hereby grants to Client a non-exclusive, non-transferable right to access the features and functions of the Service live as of the date of the Agreement and as agreed upon by the Parties. Client will use the Service only as contemplated by the Agreement and will not, and will not authorize any user to, use the Service to: (A) transmit through or post on the Service unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors; (B) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (C) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (D) attempt to gain unauthorized access to the Service, computer systems or networks related to the Service. Client will provide to Tixologi information and other assistance as necessary to enable Tixologi to establish accounts to be used by Client’s authorized users and Client will be solely responsible for all activities that occur under these accounts.
- Software License. Subject to the terms and conditions contained in the Agreement, Tixologi hereby grants to Client a limited, non-exclusive, non-transferable, non-sublicenseable right and license to use any software necessary to interface with the Service in object code form and solely in connection with the Service. Client may not use such software for any other purpose. Any such software will be considered part of the Service.
- Ownership. Client acknowledges that Tixologi and its licensors own all intellectual property rights in and to the Service and all components thereof (apart from any Client-provided materials therein), as well as all work product, developments, inventions, technology, or materials provided under the Agreement. Tixologi expressly reserves all rights not expressly granted to Client in the Agreement. Client will not engage in any act or omission that would impair Tixologi’s and/or its licensors’ intellectual property rights in the Service, and any other materials, information, processes, or subject matter proprietary to Tixologi. Client will not and will not permit any user or other third-party to: (a) decompile, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the source code from which any software component of the Service are compiled or interpreted, and Client acknowledges that nothing in the Agreement will be construed to grant Client any right to obtain or use such code; or (b) create any derivative product from any of the Service. Without limiting the foregoing, Tixologi, in its sole discretion, may utilize, all comments and suggestions, whether written or oral, furnished by Client or its users to Tixologi in connection with use or access of the Service (all such reports, comments and suggestions, collectively, “Feedback”). Client hereby grants Tixologi a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into Tixologi products and services.
2. By Client: Client agrees to grant a limited, non-exclusive license to Tixologi to use, reformat, publicly display, publicly perform, create derivative works of, and reproduce all documents, designs, logos, trademarks, text, animation, photographs, audio, and videos and other material provided by Client to Tixologi for the purpose of marketing and promotion. Client retains ownership of all such materials provided by Client. Tixologi shall expressly have the right to publicize that it is the exclusive ticket sales platform and ticket provider for Client, including without limitation on Tixologi’s website.
3. Trademark License: Subject to the terms and conditions of the Agreement, each Party (“Licensor”) grants the other Party (“Licensee”) a limited, non-exclusive, non-transferable, royalty-free right and license to use Licensor’s logos, trademarks, and trade names (“Marks”) solely for the purposes contemplated in the Agreement. Licensee will use Licensor’s Marks in conformance with any trademark usage policy Licensor may communicate to Licensee from time to time. Any Licensee use will be subject to the approval of Licensor, such approval not to be unreasonably withheld or delayed, with the understanding that any substantially similar use will not require additional approval, but will be subject to the provisions of this Section. Licensee’s use of Licensor’s Marks will be subject to Licensor’s quality control procedures. Licensee will not use Licensor’s Marks in a manner that Licensor reasonably believes dilutes, tarnishes, or blurs the value of Licensor’s Marks. Licensee acknowledges that Licensee’s use of Licensor’s Marks will not create in Licensee, nor will Licensee represent it has, any right, title, or interest in or to Licensor’s Marks other than the license granted by Licensor above. Licensee will not challenge the validity of or attempt to register any of Licensor’s Marks, nor will it adopt any derivative or confusingly similar names, brand, or marks or create any combination marks with Licensor’s Marks. Licensee acknowledges Licensor’s ownership and exclusive right to use Licensor’s Marks and agrees that all goodwill arising as a result of Licensee’s use of Licensor’s Marks will inure solely to the benefit of Licensor.
5. Unauthorized Use: Tixologi and Client agree to immediately notify the other of any unauthorized use of the other Party’s proprietary rights or End User Data of which either becomes aware.
- Definition. By virtue of the Agreement, the Parties may have access to each other’s Confidential Information. “Confidential Information,” as used in the Agreement, means any written, machine-reproducible, and/or visual materials that are clearly labeled as proprietary, confidential, or with words of similar meaning, and all information that ought reasonable to be considered as confidential based on the nature of the information or the circumstances surrounding disclosure. Tixologi Confidential Information includes, without limitation, those aspects of the Service that are not otherwise available to authorized users or which are publicly available, and any software whether in source or executable code, nonpublic financial information, pricing, business plans, personalized marketing materials, and variable pricing outcomes. Client Confidential Information includes, without limitation, and all information related to ticket sales volumes, pricing and pricing strategies, non-public events, strategic plans, or business plans.
- Protecting Confidential Information. The terms and conditions of the Agreement shall be deemed the Confidential Information of both Parties and neither Party shall disclose such information except to such Party’s advisors, auditors, accountants, attorneys, board committees, investors (and prospective investors), and prospective acquirers as have a reasonable need to know such information, provided that any such third-parties shall, before they may access such information, either (A) execute a binding agreement to keep such information confidential, or (B) be subject to a professional obligation to maintain the confidentiality of such information. The Parties agree that they shall not disclose, give, sell, or otherwise transfer or make available the other Party’s Confidential Information to any third-party except as otherwise permitted under the Agreement; will not use each other’s Confidential Information except as required for the performance of its obligations under the Agreement; will limit the dissemination of the other Party’s Confidential Information within its own organization, or to its consultants, agents, subcontractors, vendors, or representatives, to such individuals whose duties justify the need to know such Confidential Information, and then only provided that reasonable efforts have been made to ensure that there is a clear understanding by such individuals of their obligation to maintain the confidential and proprietary nature of the Confidential Information and to restrict its use solely to the purposes specified herein; and not make any records or copies of the other Party’s Confidential Information, except as permitted by either the Agreement or by the other Party and to notify the other Party immediately upon discovery of any loss, unauthorized disclosure, or use of Confidential Information, or any other breach of this Section, and provide reasonable assistance to the other Party to prevent further unauthorized use or disclosure.
- Exclusions. Confidential Information shall not include information that: (A) is or becomes publicly known through no act or omission of the receiving party; (B) was in the receiving party’s lawful possession prior to the disclosure; (C) is rightfully disclosed to the receiving party by a third-party without restriction on disclosure; or (D) is independently developed by the receiving party, which independent development can be shown by written evidence.
- Required Disclosure. Notwithstanding anything in the foregoing to the contrary, a receiving party may disclose disclosing party’s Confidential Information pursuant to any governmental, judicial, or administrative order, subpoena, discovery request, regulatory request, or similar method, provided that the receiving party as promptly as possible and as legally permissible notifies the disclosing party in writing of such demand for disclosure so that the disclosing party may seek to make such disclosure subject to a protective order or other appropriate remedy to preserve the confidentiality of the Confidential Information. The receiving party agrees that it shall not oppose and shall cooperate with efforts by the disclosing party with respect to any such request for a protective order or other relief.
- Use and Nondisclosure. Each Party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement, but in no event will either Party use less effort to protect the Confidential Information of the other Party than it uses to protect its own Confidential Information of like importance. Each Party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein.
- VIRTUAL EVENTS
- Virtual Events. If Client utilizes the Services to list, create, produce, organize or operate an Event that will be made available via live or recorded streaming, video-on-demand (“VOD”), one-on-one access, or some other virtual method, platform, or technology (whether by Tixologi or by, or in connection with, a third-party streaming platform, communications or collaboration platform or provider, or other technology or service provider or supplier), such Event shall be referred to herein as a “Virtual Event”. For purposes of this Section, “Virtual Content” means information, names, images, pictures, logos, documents, materials, information, photographs, animation, video, audio, music, text and applets contained therein, in each case, as applicable, whether such content is live or recorded.
- Client Obligations for Virtual Events. Client shall be solely and fully responsible for organizing, operating, and producing Virtual Events, and for sourcing, producing, and providing any and all Virtual Content to be Virtually Used during Virtual Events. Client shall be fully liable for any Virtual Event and any and all Virtual Content, and assumes all risks related thereto, including, without limitation, any third party’s reliance on the accuracy of Virtual Content, or any claims relating to intellectual property or other legal right. Client shall obtain all rights, licenses, consents and authority (including without limitation all copyrights and sync licenses) necessary to legally Virtually Use, transfer and license the Virtual Events and any and all Virtual Content. Tixologi shall have no such responsibility, liability or obligations with respect to any Virtual Event or Virtual Content.
- Virtual Event Insurance. For each Virtual Event hereunder, Client shall maintain in full force and effect, errors and omissions insurance consistent with market standards (the “E&O Insurance”). The E&O insurance policies will be written by a licensed insurance company with an A.M. Best’s Rating of no less than A-VIII (or comparable rating). Client will provide, upon request by Tixologi, copies of the relevant policies and certificates of insurance evidencing the E&O Insurance. Client will name Tixologi as a loss payee on each E&O Insurance policy (which status will require at least thirty (30) days prior written notice to Tixologi of any cancellation and/or material change to such policy), and will deliver certificate(s) of insurance and endorsement(s) satisfactory to Tixologi evidencing such status a reasonable time before the date of the applicable Virtual Event. In the event that Client fails to comply with the provisions of this Section, then, in addition to such other remedies that Tixologi may have, Tixologi may require Client to reimburse Tixologi for Tixologi’s reasonable costs of obtaining Tixologi’s own E&O Insurance policies.
- License; Representation, and Warranties. By listing a Virtual Event on the Services, or utilizing the Services to create, produce, organize or operate a Virtual Event, or providing to Tixologi, or otherwise posting or uploading to the Tixologi Virtual Platform (as defined below), a Virtual Event and/or any Virtual Content, Client (x) grants Tixologi a nonexclusive license to publicly or privately distribute, display, perform, publish, post, transmit, upload, import, access, possess, create derivative works of, reformat, copy, reproduce, broadcast, store, or otherwise use in any manner (collectively, “Virtual Use” or “Virtually Use”, as applicable) the Virtual Event and any and all such Virtual Content, and (y) represents and warrants to Tixologi that:
- Client either (A) owns all rights in and to the Virtual Event and all Virtual Content or (B) otherwise has (and will continue to have) the full power, title, licenses, consents and authority (including without limitation all copyrights and sync licenses) necessary to legally Virtually Use, transfer and license such Virtual Event and Virtual Content.
- Client has (and will maintain) the full power, title, licenses, consents and authority to allow Tixologi and the Services to access any websites, web pages and/or other online services to which Client directs Tixologi or any End User for the purpose of Virtually Using, viewing, or attending the Virtual Event and/or any Virtual Content;
- The Virtual Event and all Virtual Content are (and will continue to be) true, current, accurate, non-infringing upon any third-party rights, and in no way unlawful for Client to Virtually Use, in each jurisdiction in which End Users reside, or for Tixologi and/or End Users to Virtually Use, view or attend in connection with the Virtual Event; and
- Client has obtained all consents and permissions required under all applicable laws, regarding the Virtual Use of any personal information and/or image or likeness of any person, entity or property which is part of the Virtual Event or any Virtual Content, and Client will adhere to all laws applicable thereto; and
- Client shall comply with the United States’ Children’s Online Privacy Protection Act of 1998 in connection with the Virtual Event, and shall not direct, market, or target any Virtual Event or Virtual Content at children under the age of thirteen.
5. Threats of Infringement. Tixologi shall not be responsible for preventing or prohibiting (technologically or otherwise) any End User from recording, copying, duplicating, re-broadcasting, publicly displaying or exhibiting, distributing, downloading, importing, accessing, or otherwise Virtually Using any Virtual Event or any Virtual Content or otherwise infringing upon Client’s, or some other third party’s, intellectual property rights in or to any Virtual Event or Virtual Content. Tixologi shall have no liability for any claims, losses or damages arising out of or in connection with any such End User actions or access by any person.
6.Virtual Venue. For any Virtual Event, the “Venue” (as defined in the Customer Contract) shall be deemed to be the one or more domains or platforms that displays the Virtual Event (e.g, Tixologi’s website (the “Tixologi Virtual Platform”), Twitch, FacebookLive, YouTube, Zoom, Vimeo, etc.).
7.Advertising. Client agrees that Tixologi may enable advertising on or around any Virtual Event on the Tixologi Virtual Platform, including in connection with the display of the Virtual Content or other information.
9. Prohibited Content. Client agrees that it will not send, display, post, submit, publish or transmit any Virtual Event or Virtual Content that: (i) is unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, pornographic, obscene, harassing, hateful, racially or ethnically offensive, includes material harmful to minors, encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise dishonest, inaccurate, malicious or fraudulent; (ii) promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking; (iii) is unfair or deceptive under the consumer protection laws of any jurisdiction; (iv) is copyrighted, protected by trade secret or otherwise subject to third-party proprietary rights, including privacy and publicity rights, unless Client is the owner of such rights; (v) creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with an investigation by law enforcement; (vi) impersonates another person; (vii) involves theft or terrorism; (viii) constitutes an unauthorized commercial communication; (ix) contains the contact information or any personally identifiable information of any third-party unless Client has first obtained the express and informed consent of said third-party to include their contact information and/or personal information; (x) transmits or contains software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; and/or (xi) breaches the Agreement.
10. Removal of Content. It is the policy of Tixologi to respect the legitimate rights of copyright owners, and Tixologi will respond to clear notices of alleged copyright infringement in accordance with the procedures set forth in the Digital Millennium Copyright Act, 17 U.S.C. Section 512. Tixologi reserves the right to request that Client modify any Virtual Event and further reserves the right to remove any Virtual Events that are not compliant with the Agreement, or in Tixologi’s reasonable discretion, are offensive, fraudulent, or otherwise damaging to Tixologi’s reputation.
- Termination by Tixologi. Tixologi may terminate the Agreement prior to the end of the Term in the following instances:
- Material breach by Client which remains uncured for more than thirty (30) days after written notice and demand for cure has been delivered by Tixologi;
- In the event that Client files a petition for bankruptcy, is adjudicated bankrupt, has an action instituted by another party seeking its dissolution or liquidation, is placed in receivership or admits insolvency;
- For any reason with thirty (30) days’ notice to Client; and
- At any time during the Term when Client has engaged with a third party merchant processor, immediately (A) if Client fails to begin the merchant processor registration process within seven (7) business days of the Effective Date or the date on which it is determined that such third party shall serve as merchant processor, as applicable, (B) if Client fails to be approved by the third party merchant processor within thirty (30) days of the Effective Date, (C) upon expiration or termination of Client’s third party merchant processor agreement for any reason, or (D) if Tixologi believes, in its sole discretion, that there is an unacceptable degree of risk associated with use of the current merchant processor.
- At any time during the Term when Tixologi is serving as the merchant processor, immediately (A) if Tixologi is unsuccessful, in its sole discretion, in receiving satisfactory information for it to verify Client’s identity or to determine that Client is creditworthy, (B) if Tixologi believes, in its sole discretion, that there is an unacceptable degree of risk associated with use of Tixologi as the merchant processor, Client, Client’s business, Client’s use of the Service, any Event, or any Client ticket sale transaction, or that Client has breached the terms of the Agreement, or (C) if Client fails to furnish Tixologi with a Letter of Credit in accordance with Section 1(b)(vii) or to maintain the Letter of Credit as provided herein.
2. Termination by Client. Client may terminate the Agreement prior to the end of the Term in the following instances:
- Material breach by Tixologi which remains uncured for more than thirty (30) days after written notice and demand for cure has been delivered by Client; and
- In the event that Tixologi files a petition for bankruptcy, is adjudicated a bankrupt, has an action instituted by another party seeking its dissolution or liquidation, is placed in receivership or admits insolvency;
3. Post-Termination Obligations. Upon termination of the Agreement, the Parties shall comply with all of the following:
- Phase Out Period. Unless a material breach by Client requires immediate termination, if there are any Events listed in the Agreement or any appendix thereto which are scheduled to occur within forty-five (45) days after the effective date of termination, then the Agreement shall remain in effect, as to those Events only, until (A) such Events have occurred, or (B) Client has made adequate alternate arrangements for such Events and notifies Tixologi in writing, at which point Tixologi will no longer sell tickets for those Events or, if any such Events are Virtual Events, no longer Virtually Use such Virtual Events on the Tixologi Virtual Platform, but Tixologi may to continue to support End Users who previously purchased tickets through the Service. Client shall remain liable to Tixologi and to End Users for all obligations owed under the Agreement relating to Events and ticketing pursuant to Sections 4 through 6 and Client will honor all tickets sold to Tixologi prior to the transition.
- Final Reserve Payment. After any termination or expiration, Tixologi shall be entitled to hold all of the Reserve in its possession until seven (7) days after the end of the phase-out period described in Section 8(c)(ii) in order to protect Tixologi from chargebacks.
- INDEMNIFICATION AND CLIENT CANCELLATION INSURANCE:
- Indemnification by Tixologi:
Except to the degree caused by Client, Tixologi will defend, indemnify, and hold harmless Client and its parent company, affiliates, managers, successors, assigns, officers, directors, agents, members, subcontractors, and employees, from and against any and all third-party action, suit, or claim (including reasonable attorney’s fees and court costs) alleging that the Service provided by Tixologi infringes the intellectual property rights of a third-party.
Except to the degree caused by Client, Tixologi will defend, indemnify, and hold harmless Client from and against any and all third-party action, suit, or claim (including reasonable attorney’s fees and court costs) for damages, whether to persons or to property, caused by Tixologi and/or its employees, agents, guests, or subcontractors, arising from or in connection with the Service at the Event or Tixologi’s material breach of any terms or representations contained in the Agreement.
2. Tixologi Right to Cure:
If any portion of the Service becomes, or in Tixologi’s opinion is likely to become, the subject of a claim of infringement, Tixologi may at its option:
- Modify such infringing intellectual property so as to render it non-infringing without any material loss of functionality.
- Obtain a license for the use of the infringing element of such property in favor of Client;
- Obtain the right to use an element which performs the same function as the infringing portion without any material loss of functionality; or
- If none of the above are reasonably available, terminate the Agreement and make its commercially reasonable best effort to correct the situation with minimal effect upon the operations of Client.
The indemnification obligations in Section 9(a) do not apply with respect to any licensed material that: (i) was modified after delivery by Tixologi to Client or created in whole or in part by any third-party; (ii) combined with other products, processes, or materials where the alleged infringement relates to such combination; (iii) where Client continues allegedly infringing activity after being notified thereof and Tixologi has offered to provide modifications that would have avoided the alleged infringement; (iv) where Client’s use of such licensed material is not strictly in accordance with the license provisions of the Agreement; or (v) is based off materials supplied by Client, including its Marks.
3. Indemnification by Client:
Except to the degree caused by Tixologi, Client will defend, indemnify, and hold harmless Tixologi and its successors, assigns, officers, directors, agents, members, subcontractors, and employees, from and against any and all third-party action, suit, claim (including reasonable attorney’s fees and court costs), or other liabilities arising from or related to:
- Client’s breach or alleged breach of any provision of the Agreement or any representation or warranty made by Client therein;
- any breach or violation by Client of any applicable law, statute, ordinance, or regulation;
- Any act or omission of Client whatsoever in its operation of the Service, including but not limited to Client’s pricing, description of the Event or Venue or Venue policies, refund policies, cancellation of event, or refusal to honor valid tickets;
- Tixologi’s use of intellectual property provided to Tixologi by Client (including without limitation any Virtual Use of any Virtual Content), provided that Tixologi used such intellectual property pursuant to the Agreement and as instructed by Client;
- Any Virtual Event, Virtual Content, or End User Submissions;
- Any activities at an Event that are beyond the scope of the Agreement; or
- Any and all claims by End Users that are outside the scope of errors in the Tixologi Service.
The indemnified party will (i) cooperate reasonably with the indemnifying party at the indemnifying party’s expense, and (ii) allow the indemnifying party to control such defense or settlement of any claim if it so chooses. The indemnified party will have the right to participate in any defense or settlement or any claim at its sole expense. The indemnifying party shall not reach a settlement or intend to bind the indemnified party without priority consent from the indemnified party, which shall not be unreasonably withheld or delayed.
5. Client Cancellation Insurance:
- If Tixologi serves as the merchant processor, in the event Client cancels an entire Event, Tixologi’s sole obligation shall be to refund any purchase price (less the Service Fees) paid by End Users within fourteen (14) days of the Event cancellation. In the event Client partially cancels an Event, Tixologi shall have the option, in its sole discretion, relative to refunds, to adopt Client’s decision on how much, if any, refund will be offered to End Users. If Client maintains, or is required to maintain, a third party merchant processor account, Tixologi shall have no responsibility if Client cancels an Event in whole or in part, and as between Client and Tixologi, Client shall have all liability with respect to any such refunds.
- For each Event hereunder, Client shall maintain in full force and effect, event cancellation insurance consistent with market standards (the “Cancellation Insurance”). The Cancellation Insurance policies will be written by a licensed insurance company with an A.M. Best’s Rating of no less than A-VIII (or comparable rating). Client will provide, upon request by Tixologi, copies of the relevant policies and certificates of insurance evidencing the Cancellation Insurance. Client will name Tixologi as a loss payee on each Cancellation Insurance policy (which status will require at least thirty (30) days prior written notice to Tixologi of any cancellation and/or material change to such policy), and will deliver certificate(s) of insurance and endorsement(s) satisfactory to Tixologi evidencing such status a reasonable time before the date of the applicable Event. In the event that Client fails to comply with the provisions of this Section, then, in addition to such other remedies that Tixologi may have, Tixologi may require Client to reimburse Tixologi for Tixologi’s reasonable costs of obtaining Tixologi’s own Cancellation Insurance policies.
- Client understands and acknowledges that payment to the End User on a prompt basis (i.e. within fourteen (14) days of cancellation) is essential to maintaining the goodwill of both Client and Tixologi’s brand. As such, regardless of whether insurance, cancellation or otherwise, is collectable for the cancellation of the Event, Client warrants to Tixologi that it shall pay Tixologi or End Users, as applicable, within fourteen (14) days of the Event cancellation, or be in breach of the Agreement. Nothing in this Section shall relieve Client of any indemnity obligations under the Agreement.
6. Ticket Protection. Client understands and acknowledges that Tixologi has the right, in its sole discretion, to include ticket or registration protection products or other similar products for End Users as part of the Services. The provider of any such products will be selected by Tixologi in its sole discretion. Client is not permitted to include any ticket or registration protection products or other similar products as part of the Services. Client is not entitled to any fees, commissions, or other payment with respect to any ticket or registration protection products or other similar products made available to End Users in connection with the Services.
- LIMITATION OF LIABILITY
Tixologi shall have no liability for any claims, losses, or damage to the extent they result from errors or omissions in any information provided to Tixologi by Client through the Service, or any actions taken by Tixologi at Client’s direction. Tixologi shall have no liability for any claims, losses or damages arising out of or in connection with Client’s or any End User’s use of any third-party products, services, software, or web sites that are accessed via links provided by Client. Tixologi shall have no liability for any claims, losses or damages arising out of or in connection with any Virtual Event, Virtual Content, or End User Submissions.
EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, EACH PARTY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AGREEMENT OR THE SERVICES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, TIXOLOGI DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED IN LESS THAN FORTY-EIGHT (48) HOURS EACH PARTY FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TIXOLOGI OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
Except with respect to nonpayment of fees owed hereunder or breach of Section 2 or Section 5 (collectively, “Exempt Claims”), in no event shall either Party be liable to the other for any consequential, incidental, indirect, punitive, or special damages, the possibility of such damages, including without limitation damages arising out of or in connection with any loss of profit, interruption of service, or the loss of business or anticipatory profits, even if such Party has been apprised of the likelihood of such damages. Except with respect to Exempt Claims, in no event will either Party’s aggregate liability under the Agreement exceed the total dollar amount received by Tixologi from Client’s Events during the six (6)-month period prior to the event giving rise to the liability. For the avoidance of doubt, this Section neither is intended to limit, nor shall it limit, the Parties’ respective obligations under Section 5.
It is agreed and understood that neither Tixologi nor Client guarantees or will guarantee that any minimum or fixed number of tickets will be offered or sold through the Service in the aggregate or for any specific Event.
- REPRESENTATIONS AND WARRANTIES
Each Party hereby represents and warrants (i) that it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of the Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that the Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
- Resolution of Disputes:
Disputes or claims relating to the existence, performance, validity, or termination of the Agreement shall be addressed in the following order:
- The Parties shall attempt to resolve the dispute promptly through negotiation between themselves, and shall ensure that individuals with authority to enter into a binding resolution of the dispute participate;
- As a last resort, if direct discussions fail, all claims and disputes arising under or relating to the Agreement are to be settled by binding arbitration in Chicago, Illinois, or another location mutually agreeable to the Parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association (AAA), or with another service or arbitrator(s) mutually agreeable to the Parties. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. Any such arbitration shall be conducted by an arbitrator experienced in commercial disputes, and preferably entertainment, events, and technology, and shall include a written record of the arbitration hearing. The Parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction. The arbitrator may award reasonable attorney’s fees and costs to the prevailing Party, if any.
Notwithstanding anything to the contrary herein, each Party will be entitled, at any time, without first resorting to the dispute resolution process set forth above, to seek injunctive or other equitable relief from in order to preserve or enforce such Party’s rights hereunder in a state or federal court in Chicago, Illinois before following the above Resolution of Dispute protocols. Client consents to exclusive jurisdiction and venue in such courts. Nothing in this Section shall be construed as a waiver of any claims or defenses in regard to any such claim for injunctive relief.
3. Governing Law:
The Agreement shall be governed and construed in accordance with the laws of the State of Illinois without regard to its conflicts of law principles.
The provisions of Sections 2(c)(Exclusivity), 6(a)(iii) (Ownership), 6(f) (Confidentiality), 6(c) (Post-Termination Obligations), 9 (Indemnification), 10 (Limitation of Liability) and 12 (General) shall survive the expiration or termination of the Agreement.
The Agreement, including but not limited to any right, interest, benefit, or obligations under the Agreement, may not be assigned by Client without prior consent of Tixologi, which consent shall not be unreasonably withheld. Any assignment in violation of the foregoing will be null and void.
All notices provided for herein shall be considered effective and shall be deemed to have been duly given or made (i) when personally delivered; (ii) within twenty-four (24) hours of receipt via national overnight courier with tracking, addressed to the addresses of the Parties stated above; or (iii) within twenty-four (24) hours of delivery via e-mail, if the recipient acknowledges receipt of the email.
7. Entire Agreement and No Modification:
The Agreement (consisting of the Customer Contract and these General Terms) sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and merges and supersedes all prior discussions, negotiations, understandings, or agreements between them. The Customer Contract shall not be changed, modified, or amended in any respect without the mutual written consent of both Client and Tixologi. For the avoidance of doubt, Tixologi has the right to unilaterally amend these General Terms, and these General Terms are subject to change at Tixologi’s sole and absolute discretion, and if so, the revised General Terms will apply to Client. The most current version can be found at https://tixologi.com/general-terms.
If any provision or the application of any provision of the Agreement is determined by any court of competent jurisdiction to be invalid or unenforceable, then such provision will (i) be interpreted by the court to the maximum extent to which it is valid and enforceable; and (ii) be reformed without further action by the Parties hereto and only to the extent necessary to make such provision or the application of the provision valid and enforceable; and (iii) the remainder of the Agreement shall continue in full force and effect without being impaired or invalidated in any way.
9. Disclaimer of Agency:
Nothing in the Agreement shall be construed to create a joint venture or partnership, or interpreted to create co-ownership or co-authorship between the Parties. Neither Party shall have any right, power, or authority to enter into any agreement for or on behalf of, or to incur any obligation or liability for, or to otherwise bind, the other Party.
10. Force Majeure:
With the exception of any obligation to make payments to the other Party hereunder, neither Party will be held responsible nor be deemed to have materially breached the Agreement to the extent performance of its obligations or attempts to cure any breach are delayed or prevented by reason of fire, flood, explosion, pandemic war, strike, embargo, governmental action or failure to act, the act of any civil or military authority, act of God, inability to secure material or transportation facilities, acts or omissions of carriers, power outages, computer failures, or by any other causes beyond its control whether or not similar to the foregoing (collectively a “Force Majeure Event”). Notwithstanding the foregoing, either Party shall have the right to terminate the Agreement in the event that any Force Majeure Event affects the other Party’s performance for more than thirty (30) days or longer.
11. No Waiver:
The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of the Agreement or to exercise any right under the Agreement shall not (i) waive any other provisions, (ii) be construed as a waiver, or (iii) be construed as a relinquishment or waiver of any subsequent breach or default.
12. Counterparts; Headings.
The Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement. The headings in the Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of the Agreement. Any reference to “including” will mean “including, but not limited to” and any reference to “days” will be to calendar days unless otherwise note.
Following receipt of written permission from Client, Tixologi may publicly refer to Client, including on Tixologi’s website and in sales presentations as a Tixologi customer and may use Client’s logo for such purposes and as necessary to fulfill its obligations herein.
14. Agreement Binding:
The Agreement shall be binding upon and inure to the benefit of each of the Parties and their respective heirs, successors, administrators, and assigns.